The Socratic Method: CPR Legal Scholars Test Kavanaugh

by Matt Shudtz

September 04, 2018

Today, D.C. Circuit Court Judge and Supreme Court nominee Brett Kavanaugh begins his confirmation hearing before the Senate Judiciary Committee. Despite the disturbing lack of transparency around his service to the country during the George W. Bush administration, the show will go on.

We asked CPR's Member Scholars and staff what they would ask Judge Kavanaugh if they had the opportunity. Here are some highlights:

You Can't Put a Price on Everything

Ask a parent what they would pay to end the suffering of an asthmatic child, or a miner with black lung disease what he would pay to live life unencumbered by an oxygen tank. There is no meaningful answer – the opportunity to live a healthy life is priceless. Yet your opinion in White Stallion Energy Center v. EPA suggests that monetizing these sorts of regulatory benefits ought to be standard practice for all regulatory actions that protect health, safety, and the environment. If Congress has not unambiguously demanded that an agency monetize the costs and benefits of a rule, what is the role of a judge in reviewing an agency's analysis?

Our System of Checks and Balances

On issues of clean air and water, occupational health and safety, consumer protection, and more, Congress has granted executive branch agencies broad authority to create safeguards based on their expert analysis of risks and potential solutions. In litigation over these types of safeguards, you have frequently leaned on the so-called "major rules" exception to the longstanding Chevron doctrine and determined that courts should assume the power to decide just how much authority Congress granted to the agency. Can you explain how the "major rules" doctrine is an impartial, objective, and nonpartisan interpretive canon, as opposed to a biased tool for conservatives seeking to check the "agency aggressiveness" that you described in a 2016 speech at Notre Dame Law School?

The "Unitary Executive Theory" holds that the president wields exclusive control over the executive branch and that Congress may not meddle with the president's actions in this sphere. The theory is important because it arises in debates about regulatory agencies' implementation of health and safety laws, congressional action to protect executive branch officials from arbitrary dismissal, congressional investigations of the president, and more. Your law review writings and your opinion on the constitutionality of the Consumer Financial Protection Bureau strongly support the Unitary Executive Theory. But the text of the Constitution itself, as well as the contemporaneous views of the Founders – all sources you claim to hold dear in your jurisprudence – make clear that the scope of the president's executive power is far more nuanced and complex than the Unitary Executive Theory contemplates. A majority of the Supreme Court has never accepted the theory. The Constitution obviously requires Senate approval of executive branch officers. No less an icon than Alexander Hamilton suggested in the Federalist Papers that Senate approval would be required for the removal of officers, too. Do you admit that there are important caveats to the Unitary Executive Theory? What are appropriate uses of congressional power to keep the president in check?

Promoting Individual Liberty

In PHH Corp. v. CFPB, you called the Consumer Financial Protection Bureau a "threat to individual liberty," focusing primarily on the costs of compliance to a company accused of illegal behavior. CFPB has returned nearly $12 billion to 29 million people who were cheated out of their hard-earned money by companies that broke the law. Is your conception of individual liberty capacious enough to also account for ordinary Americans' expectations that they will be free to earn a living or enjoy clean air and water because our laws are being enforced?

In your speeches and writings, you hold yourself out as an "originalist." Upon the Constitution's adoption, the American people insisted it be amended to include a Bill of Rights aimed at preventing a tyranny from arising, and the Founders obliged. That Bill of Rights contains no exceptions for government action purporting to protect national security. Do you see the Muslim travel ban decision as consistent with original intent? 

An Inclusive Economy

The demographics of the U.S. labor force are continuously evolving, as are the types of jobs available and the structures of our employment relationships. A common thread running through your dissenting opinions in Seaworld v. Perez, Agri Processor v. NLRB, and Miller v. Clinton is the exclusion of certain classes of workers from our bedrock labor laws – in particular, undocumented workers, older workers, athletes, and entertainers. When the Supreme Court hands down a decision, the results matter at least as much as the reasoning because they shape and are shaped by larger social trends. How do the results in those labor law cases square with social progress toward greater inclusion for people from all walks of life?

Respecting American Indian Treaties and Sovereignty

Your track record in cases involving American Indian tribes is thin, yet questions involving the legal status and rights of American Indian tribes are disproportionately common on the Supreme Court's docket. American Indian tribes have water rights that predate most non-Indian water users. They also have treaty rights to hunt and use resources outside of reservation boundaries. These and other issues will come before the Court in the coming years. Tribes' distinct status, acknowledged in the text of the U.S. Constitution, stems from their history as nations that preceded the United States. Given Congress's broad powers in Indian affairs, what role should the Court play in interpreting Indian treaties and legislation affecting Indian tribes?

You have expressed skepticism about the claims of Native Hawaiians, questioning their distinct historical and cultural status in a 1999 op-ed for the Wall Street Journal. Does that same skepticism apply to legislation that affords unique protections to American Indian Tribes, such as the Indian Child Welfare Act?

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Matthew Shudtz, J.D., is the Executive Director of the Center for Progressive Reform. He joined CPR in 2006 as policy analyst, after graduating law school with a certificate in environmental law.

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